Scottish Court of Session Decisions

A motion was to-day disposed of in this case, made by the defenders on the authority of the 1st and 2nd sections of the Act 17 and 18 Vic., c. 34, asking a warrant from the Court to cite certain witnesses, owners of vessels in London, to give evidence at a jury trial, to be held in Edinburgh during the ensuing jury sittings. The pursuers are brokers in London, and they bring the action against the defender, who is sole owner of the ship Indian Empire, concluding for their commission as brokers employed to freight the defender's ship, and for certain disbursements which they allege they were obliged to make to certain parties whose goods they had freighted to the Indian Empire, but were unable to carry by reason of the ship being taken out of their hands. The claim is resisted on the ground that the pursuers mismanaged their contract by taking lower rates of freight than other owners of ships were receiving at the time in the dock in which the Indian Empire lay.

The defenders propose to make out this defence through these owners of ships, and they asked a warrant to cite them for the trial which is to take place on Tuesday. They contend that this not being a case of skilled evidence, and therefore not a matter of opinion, but a question of fact, it does not fall within the judgment of the Court in Macniven v. Turner, where the Court refused to compel skilled witnesses to attend. The Court refused the motion, on the ground, that although the evidence referred to by the defenders might be the best evidence, it was not the only evidence, because the rate of freight at the time libelled was a general fact in the knowledge of several persons, and therefore there was not sufficient urgency authorising the Court to exercise their discretion in favour of the defenders. The Court, however, granted commission and diligence to the defenders to examine the witnesses in London.